Exh.23
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SANGLI
Hon’ble President – Shri.A.V.Deshpande
Hon’ble Member – Shri.K.D.Kubal
Complaint No. 05/2011
Date of Complaint filed : 21/01/2011
Date of Judgment : 17/05/2013.
---------------------------------
Shri. Girish Ghanshyamdas Lohana
Age – 37, Occ – Business,
Shitalsagar Apartment,
Dr.P.R.Patil Road, Sangli – 416 416. … Complainant
V/s.
1. Manager/Partner, Millenium Motors
Pushparaj Chowk, Sangli Miraj Road,
Sangli.
2. Honda Motor Cycle & Scooter India Pvt.Ltd.,
Plot No.1, Sector – 3, I.M.T.Manesar,
Dist.Gurgaon, Hariyana (India) – 122 050. … Respondents
Advocate for Complainant – Shri.S.B.Dange Advocate for Respondent No.1 & 2 – Shri.V.S.Sakale
J U D G M E N T
Delivered by Hon’ble Shri.A.V.Deshpande
1. The instant complaint has been filed by the Complainant under Sec.12 of the Consumer Protection Act, alleging defective service on the part of the Respondents and he has claimed an amount of Rs.9,063/-, being the extra payment received by the Respondent No.1, plus Rs.15,000/- being the damages on account of mental agony and Rs.5,000/- being the cost of this litigation, thus, totaling to Rs.29,063/- and has claimed the interest thereon @ 18% p.a. till the actual payment is received.
2. The case of the Complainant, in short is that, Respondent No.1 is an authorized dealer of the Respondent No.2 motorcycle manufacturer. The Respondent No.1 is the agent of the Respondent No.2 Company. On 03/07/2009, the Complainant had purchased a motorcycle of Unicorn make from the Respondent No.1 and he has paid a total price of Rs.64,252/-. This amount is inclusive of the basic price of the vehicle, registration charges, RTO taxes, insurance etc.,. The Respondent No.1 has issued an invoice No.09IN01008 dated 03/07/2009, wherein the RTO registration expenses were shown to be Rs.4,160/-, the insurance charges were shown to be 1,001/-, the basic price of the vehicle was shown as Rs.51,811.54 paise and the sales tax Rs.6,476.44 paise. Thus, the basic price of the vehicle was shown as Rs.58,288/- (Rs.51,811.51 paise + Sales Tax 6,476.44 paise). The said motorcycle bears registration number as MH 10 AR 0244 and the said vehicle is in possession of the Complainant. That after the documents pertaining to the said motorcycle were received by the Complainant, the Complainant found that there was a receipt issued by RTO for payment of the registration charges amounting to Rs.3,616/- only. The Complainant contacted the Respondent No.1 from time to time and asked the clarification with regard to the excess payment recovered from him on account of RTO charges. But, neither the Respondent No.1 nor it’s employees paid any heed thereto. From time to time, the Complainant demanded the full statement of the expenses and ultimately, on 14/09/10, the Respondent issued a payment receipt to the Complainant. From the said receipt it was transpired that an excess amount of Rs.803/- was recovered by the Respondent No.1 from the Complainant. On 14/10/10, the Complainant submitted a written application asking it to give the full details of the RTO expenses. By it’s letter dated 12/11/10, the Respondent No.1 gave the particulars of the road price of the said vehicle. It was transpired to the Complainant from the said particulars that the Respondent No.1 had recovered an amount of Rs.3,556/- on account of registration charges, Rs.70/- being the RTO registration fee, Rs.555/- being the miscellaneous expenses and the Complainant was informed that an excess amount of Rs.803/- is recovered from the Complainant. Again, by letter dated 174/11/10, the Complainant, issued a letter to the Respondent No.1 calling upon it to give the details of the tax assessment submitted by the Respondent No.1 to the RTO Sangli, in respect of motorcycle in question. However, no details were given by the Respondent No.1 and therefore, the Complainant contacted the RTO office, under the Right To Information Act. Thereupon, the RTO office gave the statement of tax assessment pertaining to the motorcycle in question, submitted by the Respondent No.1. In that statement, the basic price of the motorcycle in question was shown as Rs.50,793.04 paise. Thus, the Respondent No.1 has recovered an excess amount from the Complainant under the head of the basic price of the said vehicle and thus, has given a defective service to the Complainant. Although, the basic price of the said vehicle was Rs.50.3793.04 paise, as per the tax assessment submitted by the Respondent No.1 to the RTO Office Sangli, Respondent No.1 has recovered an amount of Rs.58,288/- being the basic price of the said vehicle. Moreover, the Respondent No.1 has recovered amount of Rs.4,160/- on account of the registration charges and the RTO expenses, but, the Respondent No.1 has deposited only Rs.3,616/- with RTO Sangli. Although, the Respondent No.1 has recovered an amount of Rs.1,001/- from the Complainant on account of insurance, but, the Respondent No.1 has paid only Rs.980/- to the insurance company. That, although, the registration fee was Rs.60/- only, which was paid by the Respondent No.1, the Respondent No.1 has recovered Rs.70/- from the Complainant on that count and thus, the Respondent No.1 has recovered an excess of Rs.9,063/- illegally from the Complainant on 12/07/09. Thus, the Complainant has been deceived by the Respondent No.1 and a defective service was rendered by him. On this contention, the Complainant has prayed for the relief as stated above.
3. Although, the Respondents have been served and have appeared, they have failed to file their written statements. As far as the Respondent No.1 is concerned, the record shows that the Respondent No.1 has been seeking adjournments after adjournments, for filing written statement and those adjournments were given to the Respondent No.1 by imposing cost. The record also shows that the Respondent has not deposited the cost and ultimately, by virtue of an order passed on an application dated 16/09/11, filed by the Complainant, an order of proceeding without written statement of Respondent No.1 was passed. On the same day, the Respondent No.1 appears to have filed an application for setting aside the said order of no say and it showed it’s readiness to deposit the cost of Rs.300/- saddled on it, on previous occasion. The say of the Complainant was called for on the said application and the Complainant had objected to said prayer, but, ultimately he had contended that if, a maximum cost is imposed on the Complainant, then he has no objection for allowing the said application. Unfortunately, it appears that, the then Forum has not passed any orders on the said application, either allowing the said application of Respondent No.1 or rejecting it and hence, the written statement filed by the Respondent No.1, though, filed on record, is not read and recorded and is not received. There after, the Complainant has filed his affidavit in lieu of examination in chief on 05/11/11. On 09/02/12, the Complainant filed his written notes of arguments and there after, the matter was adjourned from time to time for filing of the say by the Respondents and the arguments. Ultimately, the matter was fixed to day for the judgment. During all this period, the Respondent has not appeared at all nor appears to have deposited the cost, imposed on it by an order dated 10/06/11. On the last occasion and today also, the Respondent and its Counsel were & are also absent and under these circumstances the matter is being decided without written statement of Respondent No.1 and Respondent No.2 also.
4. The Complainant, as stated above, has filed his affidavit in lieu of examination in chief as stated in support of his complaint and reproduced the contents of complaint on oath. He has filed as many as 11 documents along with Exh.5, which includes, the invoice issued by the Respondent No.1 giving the basic price of the motorcycle in question and the local sales tax thereon, registration charges, insurance charges and the, On road price of the vehicle in question. It is stated to be Rs.63, 249/-. The Complainant has also produced on record the particulars of the price recovered from him by the Respondent No.1, which is issued by the Respondent No.1 to the Complainant. The said particulars are filed along with list at Exh.5/4. From the said particulars, it appears that the Respondent No.1 has charged the basic price (Ex-Show Room Price) of the said vehicle as Rs.58,288/-, the vehicle tax of the said motorcycle amounting to Rs.3,556/-, Rs.70/- being the registration charges, Rs.555/- being the processing charges and that in the particulars the Respondent No.1 has stated that an excess amount of Rs.803/- has been recovered from the Complainant and the Complainant is called upon to receive the said amount of Rs.803/-. The receipts issued by Respondent No.1 regarding the payments of Rs.64,252/- towards on road price of the said vehicle inclusive of taxes is also filed on record. The Complainant has also produced on record, the receipt issued by RTO Sangli for Rs.60/- being registration charges of the motorcycle in question, one time tax receipt pertaining to the said motorcycle amounting to Rs.3,566/-. The Complainant has also produced a tax assessment submitted by the Respondent No.1 to the RTO authorities, which shows the basic price of the said vehicle being Rs.38,490/-, which includes excise duty @ 16% amounting to Rs.6,158.04 paise plus cess @ 0.125% amounting to Rs.48.11 plus cess 2% amounting to 131.80 paise plus NCCD 1% amount to Rs.384.09 paise, Maharashtra Sales Tax including VAT @ 12.5% amounting to Rs.5,581/- and thus, the total price of the said vehicle is shown to be Rs.50,793.04 paise and the one time tax of the said motorcycle is calculated on this basic price @ 7% amounting to Rs.3,556.00 paise. There is no justification, given by the Respondent No.1 for this difference in the basic price of the motorcycle in question as shown in the invoice in the particulars given by the Respondent No.1 dated 12/11/10. The Complainant has produced the insurance certificate of the said motorcycle, in which, the declared value of the said motorcycle is shown to be Rs.55,100/-. If the Respondent No.1 had appeared and participated in this proceedings, then we could have had some explanation for this difference in the basic price. But, in the circumstances mentioned above, there is no written statement of the Respondent No.1 nor any evidence is given by the Respondent No.1 nor the learned Counsel for Respondent No.1 has appeared and has argued the matter. Therefore, apparently there appears some substance in contentions of the Complainant and also statement made in the complaint as well as affidavit in lieu in examination in chief. Giving the different basic price of the goods sold, at different places, certainly amounts to a defective service.
5. As demonstrated above, as per the invoice issued by Respondent No.1, the amount of Rs.4,160/- was payable by the Complainant towards the registration charges and Rs.1,001/- being the insurance charges. The on road price of the said vehicle as quoted to the Complainant, by said invoice was inclusive of these charges and total quoted price was Rs.63,449/-. The receipts issued by the Respondent No.1 to the Complainant dated, 01/07/09 and 26/06/09, show that the total amount of Rs.64,252/- has been received by the Respondent No.1 being the price of the said vehicle. Moreover, by the letter dated 12/11/10, the Respondent No.1 has admitted to have received an amount of Rs.64,252/- from the Complainant. This amount is in excess of the quotation price / invoice price, which is filed by the Complainant along list at Exh.5/1. Here again there is no justification for the excess payment recovered from the Complainant. This excess payment of Rs.803/- is admitted to be the excess payment; by the Respondent No.1, in its letter dated 12/11/10 referred above and the Respondent No.1 has shown it’s readiness to pay the said amount. In these circumstances the Complainant should be entitled to recover the said excess payment.
6. We have already pointed out above that the receipt issued by the RTO authorities towards the payment of registration charges shows that Rs.60/- only, were paid to RTO as against the amount of Rs.70/- recovered from the Complainant, as mentioned in the letter dated 12/11/10. Similarly, the one time tax payment receipt issued by the RTO authorities, shows that an tax amount of Rs.3,556/- is recovered by the RTO authorities and the same has been paid by the Respondent No.1 to the RTO authorities. The fact that an amount of Rs.3,556/- has deposited by way of one time tax and a registration fee of Rs.70/- has been paid to the RTO authorities, is accepted by the Respondent No.1 in it’s letter dated 12/11/10. The receipt issued by RTO authorities towards the payment of registration fees shows that only an amount of Rs.60/- has been paid towards the registration fees. Thus, an excess amount of Rs.10/- has been recovered from the Complainant on account of the registration fees. There is no explanation for the recovery of an excess amount of Rs.604/- under the head of registration charges. Charging of an excess amount also tantamount to giving defective service. In this entire transaction, the Respondent No.1 appears to have recovered the total amount of Rs.1,407/- in excess from the Complainant.
7. It is no doubt true, that to recover an excess payment made by him to the Respondent No.1; a Civil Remedy is open to the Complainant. However, since charging of an excess payment is a defective service and to certain extent adopting unfair trade practice, the Complainant can recover the said amount at this Forum also. Since, the defective service on the part of the Respondent No.1 is proved, we are of the opinion that Respondent No.1 can be directed to make good the said excess payment to the Complainant. The Complainant has also claimed a further amount of Rs.15,000/- on account of mental torture and a cheating by the Respondent No.1 and also an amount of Rs.5,000/- being the cost of this litigation. Under the facts and circumstances of the case and particularly in view of the fact that the Respondent have been totally callous in defending this matter, we find the claimant is entitled to recover the said amounts from the Respondents.
8. It is not in dispute that the Respondent No.1 is an authorized dealer of the manufacturer of the said motorcycle i.e. Respondent No.2 Motor Company. The Respondent No.1 is, therefore, the agent of the Respondent No.2 and the acts done by the Respondent No.1 bind the Respondent No.2 also. Therefore, in the given set of circumstances, the Respondent Nos.1 & 2 are liable to be held jointly and severally liable to pay the amounts as determined above to the Complainant. We, therefore, hold accordingly and proceed to pass the following order.
O R D E R
1. The Complaint is allowed with costs.
2. The Respondents Nos.1 & 2 do hereby, pay an amount of Rs.1,407/-
being the excess payment made by the Complainant.
3. The Respondents Nos.1 & 2 do hereby, jointly and severally pay an
amount of Rs.15,000/- being the compensation for the mental torture
caused to the Complainant.
4. The Respondents Nos.1 & 2 do hereby, pay an amount of Rs.5,000/-,
being the cost of this litigation to the Complainant.
5. The Respondents Nos.1 & 2 shall pay the amounts mentioned above
within a period of 45 days from the date of this order, failing which, the
amounts shall carry the interest @ 8.5% p.a. from the date of complaint
till realization. On failure of Respondents 1 & 2 to pay the amounts as
mentioned above within the time frame, the Complainant shall be
entitled to take recourse to the provisions of the Sec.25 or Sec.27 of the
Consumer Protection Act, if, desired.
Date :- 17/05/13.
Place – Sangli
(K.D.Kubal) (A.V.Deshpande)
Member President
